Public Bill Committee

[Ann Winterton in the Chair]

Clause 107

Proceedings

Question (this day) again proposed, That the clause stand part of the Bill.

Ann Winterton: I remind the Committee that with this we are taking new clause 10Representative actions
(1) The Minister shall make regulations to permit the Equality and Human Rights Commission or a registered trade union to apply to a court or tribunal as appropriate for a representative action order in relation to a defined class of persons (the class) who would benefit from the litigation of rights, or common issues in relation to rights that members of the class may have as a result of the provisions of this Act.
(2) The regulations shall make rules in relation to the making and termination of a representative action order and its conduct.
(3) Such rules shall provide for hearings to be conducted in private when it is necessary for the issues between the members of the class and the Equality and Human Rights Commission or a registered trade union to be resolved and those issues are subject to legal professional privilege shared by members of the class.
(4) Such rules shall make provision for the hearing of any issue as defined in subsection (3) to be undertaken and managed by a different judge or tribunal from the judge and tribunal that have the responsibility for determining the rights or common issue in relation to rights, of the member class..

Vera Baird: Lady Winterton, welcome back to our happy Committeewe are happy because we are finishing early.
I was coming to the conclusion of my remarks before the Committee adjourned. What will happen next is that the Ministry of Justice, which has responsibility for the issue of representative actions and matters across the entire civil justice sector, will respond to the Civil Justice Council. We have done a piece of work that has fed into its deliberations and we would wish to consult, before the recess, on whether representative actions should come into play in tribunals. If we could accomplish that, we would expect it to report and for us to respond early in the autumn, so any legislative provision would be unlikely to catch this Bill before it goes to the Lords. However, we would seek to introduce such a provision when the Bill, which is the obvious legislative vehicle for such a measure, is in the Lords.

Emily Thornberry: If my hon. and learned Friend is able to accomplish that, it will be a huge achievement and greatly welcomed on the Government Benches.

Vera Baird: I have always liked being congratulated before I have done anything, so I welcome those comments.

Lynne Featherstone: I have listened carefully to the Minister and welcome what she has said. I await with interest what will come forward in summer. Such a provision is vital, so I am pleased that she is moving forward.

Vera Baird: It looks like approbation all round, so we will be happy all afternoon.

Sandra Osborne: I understand that this is a rather complicated situation, but it is important. I welcome the Ministers comments.

Question put and agreed to.

Clause 107 accordingly ordered to stand part of the Bill.

Clause 108

Jurisdiction

Question proposed, That the clause stand part of the Bill.

Mark Harper: I have a brief question on the clause, which is relatively uncontroversial. Explanatory note 364 states:
Currently, two assessors sit with judges in cases involving race and sex discrimination only. This clause extends the requirement to have assessors for cases of discrimination based on any protected characteristic...but reduces the number of assessors used in each case to one.
Why have the Government made that decision?

Vera Baird: I suppose that we may run short of assessors now that we have extended the range. It seems as if one will suffice, granted that there are new training components for judges, so they ought to be more expertnot that they are not experts already.

Question put and agreed to.

Clause 108 accordingly ordered to stand part of the Bill.

Clauses 109 and 110 ordered to stand part of the Bill.

Schedule 17 agreed to.

Clauses 111 to 117 ordered to stand part of the Bill.

Clause 118

Remedies: General

John Penrose: I beg to move amendment 16, in clause 118, page 85, line 28, leave out paragraph (c).

Ann Winterton: With this it will be convenient to discuss the following: amendment 17, in clause 118, page 85, line 29, leave out subsection (3) and insert
(3) In the event that an employment tribunal finds that an employer has contravened a term modified or included by an equality clause, the employer shall be required to undertake an audit, to be known as an equal pay audit, and to make the results of the audit available in a manner prescribed in regulations made by the Secretary of State..
Amendment 18, in clause 118, page 86, line 8, leave out subsection (7).

John Penrose: I rise to speak to amendment 16. Before I do so, I should say that I am conscious that the entire Committee wants to make progress this afternoon, and that amendments 17 and 18 are on topics which hon. Members on both sides of the Committee have given a thorough airing under clause 73. Therefore, rather than go over the same ground, I am not planning to speak to those two amendments, and I give notice of my intention not to press them.
On amendment 16, there is more of a substantive issue about which we want to probe the Minister. It is to do with what an appropriate recommendation from a tribunal might involve. There is a definition of an appropriate recommendation in clause 118(3). It is
a recommendation that within a specified period the respondent takes specified steps for the purpose of obviating or reducing the adverse effect of any matter.
We want to know the Governments thinking. Over what period might that take place? What is the scope of the recommendation? What is the force of a recommendation as opposed to an instruction?
I am sure that all members of the Committee would agree that it may be necessary, when a finding has been made that an organisation has been behaving in an illegal fashion, for that organisation to clean up its act and to change what it is doing, potentially substantially. Obviously, how it is asked to do that could have a profound impact on what it actually does. First, therefore, will the provision have binding effect? I presume so, but the word is recommendation. Perhaps the Minister could clarify the degree of compulsion that is inherent in the Governments intentions.
Secondly, the Conservative party is concerned to provide enough leeway that organisations which are instructed to achieve a particular outcomea desirable outcome that would reduce discriminationmay be able to come up with new and different ways of achieving that outcome which may not entirely be those which were originally envisioned by the tribunal under its recommendation. We wonder whether the Government were envisaging that tribunals will mandate processsteps to be carried out regardless of the outcomeor whether they will say, You must achieve this or that and you have a degree of flexibility about how.
The reason that that is important is, first, that organisations will often come up with creative solutions that are not necessarily envisaged by lawyers and their representatives in the tribunals. Secondly, things change over time. It says in the clause that a recommendation must be within a specified period but if that specified period lasts a good long timeit could, in theory, be five or ten yearsand the world moves on, the organisation merges or splits, or the sector in which it is working alters in a profound way, it might be that, if it were mandated to take process steps to change what it was doing internally, those steps would cease to be effective. I am sure that no one here would want that. Therefore, any recommendations need to be future-proof. We must ensure that, if the world changes, such organisations are still bound to achieve the mandated outcomes and make sure they are not behaving in a discriminatory, or otherwise disadvantaging fashion.
We would like to probe the Government on how they intend to deal with those issues, and what they believe the scope and powers will allow them to doeither here, in secondary legislation or in guidanceto ensure that they do not fall into any of the various pitfalls that I have described.

Mark Harper: I shall speak briefly. I had not intended to speak at all, but I am afraid that the Solicitor-General provoked me this morning in the Chamber, at women and equality questions, when she implied that we did not think that we should do anything about the gender pay gap. We said at length when we debated an earlier clause that we acknowledged that there was a problem. We simply disagreed about the solutions. Amendment 17, as best we could draft it, would put our policy into the Bill. That is why we tabled it. My hon. Friend the Member for Weston-super-Mare said that we did not want to spend a long time discussing the amendment because the issue had a thorough airing when we debated the earlier clause. I think that all members of the Committee would agree with that. However, given what the Solicitor-General said in the Chamber, I want to remind the Committee that we think that this is a problem that needs solving; we simply disagree with the Government about the nature of the solution. We discussed that issue thoroughly and I am sure that we shall return to it at later stages and in the other place. I think that that is all that needs to be said.

Vera Baird: If I have understood correctly, it is amendment 17 that will not be pressed. Is it also amendment 18? That amendment would remove the power of tribunals to award compensation if a respondent fails to comply with a recommendation. That relates to the question from the hon. Member for Weston-super-Mare about the measure of compulsion. That is the default availability. The tribunal could award or increase compensation if a recommendation is not accepted.
Amendment 16 would remove the current power to make recommendations. I do not suppose that is what the hon. Gentleman intended, eitherit is probably just the way it is drafted. He just wants me to say what reach into business these proposals would offer.

Mark Harper: Amendment 18 would leave out subsection (7). I think I am right that the order that the tribunal can make to increase compensation applies only under subsection (2)(b)only where the order is to pay compensation specifically to the complainant. It is not in relation to the recommendation of a more general nature that the tribunal might make to the business. I think that I am right in saying that.

Vera Baird: That is right, I am told. It is about the reach. The key is that any recommendations made to benefit the broader work force and indeed the business would have to be proportionate to the case that is brought, otherwise it would be unlawful. That is a general principle that has found greater emphasis since we brought the European convention into our law. To answer the specific point about time, it would have to be a reasonable period. There might be more creative ways of doing something that a tribunal recommends. The sensible thing would be for the parties to get together first, discuss it and suggest it to the tribunal, which could then recommend it. If parties thought there were a better way forward, that approach would give the tribunal the opportunity to avoid recommending something that was perhaps less suitable.

John Penrose: I thank the Minister for her explanation, which I think she is part way throughit is clear so far. On that last point, in her experience, do tribunals tend to mandate outcomes or process? Is that a matter on which the Government have guidance and which they are able to influence, given that tribunals will want to be independent in many respects?

Vera Baird: Some typical recommendations that might help include taking steps to implement a harassment policy more effectively; providing equal opportunities training for staff involved in promotion procedures; and introducing more transparent selection criteria in recruitment transfer or promotion processes. Those seem to be fairly process-based. Those are the examples that I have, so I assume that they are typical and that that is the nature of likely recommendations.
The point is that if a problem that goes beyond the individual claimant has been found, it must be in everyones interest for the tribunal to recommend that it be put right so that the next complainant does not have to come and, as it were, clog up the works.

John Penrose: I take the Ministers point; I see what she is driving at. My concern is that if, for example, equal opportunities training was mandated, people might go through training and come out the other side having ticked all the right boxes, but not necessarily adhere to it afterwards. I am trying to make a point about the difference between mandating an outcome to be achieved by whatever means, which still leaves a duty and a burden on the organisation to achieve it, and mandating a process whereby, when it is complete, the organisation can say, We did it, whether or not the outcome was as desired originally by the tribunal.

Vera Baird: I suppose it is difficult to be able to say to a business, Employ 10 more black and minority ethnic staff. If the problem is in that territory, the limitation is probably to say, Have better recruitment processes. Train your middle management with the intention of getting rid of that problem. I do not think that there is anything to be concerned about. It is a pretty simple, logical follow-on to a finding in a tribunal that there is a problem and a recommendation on how best to put it right.

Mark Harper: May I pick up one more point? When we discussed clause 107 on class actions, or representative actions, the Minister said that proportionality would be important. I do not know whether it was in the consultation paper, but if there is to be a representative action, which by definition covers a lot of people, it follows that the appropriate recommendation might be more significant because it affects more people. Is that explicitly in the consultation document? It would be worth bringing that out so that it was clear to people, because it follows logically from what she said.

Vera Baird: The hon. Gentleman is right to say that it follows logically. There is a need for a proportion. If one is bringing an action on behalf of 2,000 people, one can reach a lot further and be more wholesale than if it involves just one individual, although if one is pinpointing the same problem for the 2,000 that the individual pinpointed, there might not be a need for anything bigger. Obviously, we ought to make that point in any consultation document so that people understand that a possible consequence of representative actions is that recommendations reach further or go wider. I hope the hon. Gentleman is satisfied.
Finally, the problem of recommending an outcome is that it might not be within the businesss power to guarantee achieving it, so that would be unfair. Another point is that by the time an employee gets to a tribunal with an employer, quite often the relationship has broken down and the employee has gone, so a recommendation confined to that employee has no effect at all. That is why it is better to have available the power to make recommendations.

John Penrose: That was a clear and straightforward response from the Minister. She fully answered all the questions and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 118 ordered to stand part of the Bill.

Clauses119 to 122 ordered to stand part of the Bill.

Clause 123

Time limits

Question proposed, That the clause stand part of the Bill.

Mark Harper: Again, I hope to be brief. My question is simple. The clause makes it clear that if someone wishes to bring a claim for breach of an equality clause or rule, they must normally do so within six months of the end of their employment contract. Members of the armed forces have an additional three months in which to bring a claim, as they must first make a complaint under service complaints procedures. Is there any scope for that time limit to be changed if the service complaints procedure takes more than three months? The next clause, which is supplementary to this, allows that to happen for cases defined as non-standard.
I am sure that in the example of the armed forces, the delay would not be deliberate, but if the service complaints procedure took a long timeif, for example, witnesses or other people needed to participate in the process were on active duty on the front linethat might disadvantage the complainant. Will the tribunal or somebody else have the power either to extend the time limit or to decide that the case is non-standard under clause 124, so that the individual will not be disadvantaged and an unreasonable burden to accelerate the process will not be placed on the armed forces? That might not be possible or might affect the operational effectiveness of the armed forces.

Vera Baird: I will check whether that mechanism is available, but I suspect that one would put the application in to the tribunal anyway and agree not to action it to protect the time limit while the complaints process was under way. That often happens anyway in court cases where a time limit must be met: one does not take any further steps, but just fulfils the time limit. However, I will see in a moment whether I can get a better answer to the hon. Gentlemans precise questions.

Question put and agreed to.

Clause 123 accordingly ordered to stand part of the Bill.

Clauses 124 to 129 ordered to stand part of the Bill.

Clause 130

Burden of proof

Vera Baird: I beg to move amendment 81, in clause 130, page 95, line 27, after offence, insert under this Act.

This amendment would remove an inconsistency between Clause 107(7)(a) and Clause 130(5).
The amendment is just to correct a minor drafting error.

Mark Harper: I want to raise an issue about the clause, Lady Winterton, so I hope you will let me do so now. Then, I suspect, we will not need to debate clause stand part. The clause sets it out that, under current legislation, in most cases the burden of proof is reversed once the claimant has established a case to an initial level. However, the explanatory notes say that
the burden of proof is currently not reversed in race discrimination claims brought on grounds of colour and nationality; claims of victimisation which relate to race discrimination; non-work disability discrimination claims; and sex discrimination claims which relate to the exercise of public functions. In these areas the burden of proof will now be reversed once the claimant establishes his or her case to an initial level.
I suspect the Ministers answer will be brief, but why is it that under the current law the burden of proof was not reversed in those cases, and why have the Government decided to change that? It may be self-evidently right to reverse it, and perhaps there were some very good reasons why that did not happen in the past. I am curious and it would help the Committee to know about the principles.

Vera Baird: As far as I know, it is just a historical accident that two bits of race legislation, which were added later, followed the relevant way forward and earlier bits did not. I think that is correct. If there is more to say, I shall write to the hon. Gentleman and he can read it.

Amendment 81 agreed to.

Clause 130, as amended, ordered to stand part of the Bill.

Clauses 131 to 137 ordered to stand part of the Bill.

Clause 138

Contracting out

Vera Baird: I beg to move amendment 82, in clause 138, page 100, line 16, after of, insert or made under.

This amendment would expand the scope of Clause 138(1) to render unenforceable a contractual term which purports to exclude or limit a provision made under the Bill in addition to a provision of the Bill itself. The amendment would complement the provisions already in the Bill.

Ann Winterton: With this it will be convenient to discuss Government amendment 83.

Vera Baird: I shall explain the amendment, which is slightly more substantial than the other amendments I have spoken to.
Clause 138 makes unenforceable the terms of any contract or non-contractual agreement that denies the individual the protection set out in the Bill. The amendments will make unenforceable contracts that deny individuals the rights given to them in secondary legislation under the Bill. They tidy matters up and make them more rational. I hope that is clear.

Amendment 82 agreed to.

Amendment made: 83, in clause 138, page 100, line 19, after of, insert or made under. (The Solicitor-General.)

This amendment would expand the scope of Clause 138(2) to render unenforceable a relevant non-contractual term which purports to exclude or limit a provision made under the Bill in addition to a provision of the Bill itself. The amendment would complement the provisions already in the Bill.

Clause 138, as amended, ordered to stand part of the Bill.

Clauses 139 to 142 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned.(Lyn Brown.)

Adjourned till Tuesday 30 June at half-past Ten oclock.